Adults with incapacity: code of practice for medical practitioners

2. MEDICAL TREATMENT UNDER PART 5

Key points in part 2

Part 5 of the Act gives a general authority to treat a patient who is incapable of consenting to the treatment in question, on the issuing of a certificate of incapacity.

The general principles of the Act must be applied by the practitioner who issues such a certificate and giving treatment under it.

The common law authority to treat a patient in an emergency situation remains in place.

The general authority may not be used where a proxy has been appointed and it would be reasonable and practicable for the practitioner who issued the certificate to obtain their consent.

Treatment under Part 5 is subject to exceptions. It cannot authorise certain treatments and can only authorise others subject to additional requirements.

Structure of this part of the code

2.1 This part of the code covers the provisions of Part 5 of the Act in relation to the general authority to treat, apart from dispute resolution which is dealt with in Part 3 of the code. It proceeds so far as possible step by step, following the logical sequence of treatment decisions. It gives the statutory requirements followed by good practice guidance on each step.

The general authority to treat

2.2 Prior to the Act, to treat a patient without the consent of either the patient or a proxy with relevant powers, other than in an emergency, could be considered to be assault. Part 5 means that provided a certificate of incapacity is issued for the treatment in question and provided the general principles of the Act are observed, the treatment may be given. In deciding whether to issue such a certificate, the healthcare practitioner must apply the general principles of the Act. The healthcare practitioner issuing the certificate should be responsible for the provision of the proposed treatment or in a position to delegate appropriately the responsibility for the provision of the treatment.

2.3 As described in the following paragraphs Part 5 of the Act confers on healthcare practitioners a general authority to treat patients who are incapable of consenting to the treatment in question. This is a helpful clarification of the law. Common law allows medical treatment to be given in an emergency (see 2.40 to 2.42) to patients who cannot consent. This remains the case and there is no need to go through the steps in Part 5 of the Act in order to give treatment for the preservation of the life of the adult or the prevention of serious deterioration in the adult's medical condition. What is appropriate in a particular situation is a matter basically for clinical judgement, against the background of the principles and requirements of the Act.

Who may exercise the general authority to treat

2.4 Medical treatment is defined by the Act to include "any procedure or treatment designed to safeguard or promote physical or mental health". Authority to do what is reasonable in the circumstances in relation to medical treatment is set out in section 47 of the Act. It applies under subsection (1A) to the medical practitioner primarily responsible for the medical treatment of the adult and under subsection (3) to any other person authorised by him or her and acting on his behalf under instructions, or with his or her approval and agreement.

The Smoking Health & Social Care (Scotland) Act 2005 amends section 47 so as to extend the authority to grant a certificate under section 47(1) to health professionals other than 'registered medical practitioners' provided they have successfully completed relevant training in the assessment of incapacity. ¹ The other professionals included in section 35(2)(b) of the 2005 Act are dental practitioners, ophthalmic opticians (optometrists) and registered nurses. Additionally, the Act includes a regulation making power which allows Scottish Ministers to add further groups of healthcare professionals, if desirable. A certificate issued by healthcare professionals other than 'registered medical practitioners' will only be valid within their area of practice e.g. a dentist could only authorise dental treatment.

2.5 This authority is obtained by completion of the certificate of incapacity. A copy of the certificate can be found at Annex 3 of this code.

2.6 There will be circumstances where an adult is admitted to hospital at night or at other times. If in these circumstances treatment has to be authorised under section 47 of the Act (as amended), the medical practitioner primarily responsible normally will be the doctor who is in attendance.

2.7 Healthcare is a team effort. The authority granted under section 47 (as amended) may be exercised by the person who issues the certificate or be delegated to another person acting under his or her instructions or with his or her approval or agreement.

2.8 A husband or wife who assists a spouse to take medication prescribed by a doctor does not need delegated authority to do so. The need for delegation of authority arises in cases where treatment that would normally be carried out by a practitioner authorised under section 47(1) of the Act (as amended) is carried out by any other person.

2.9 The Act is not intended to affect the position of practitioners' civil liability. Liability for negligent treatment remains with the negligent practitioner. What he or she can do is to certify in accordance with subsection 47(1) of the Act (as amended) that the adult is incapable in relation to a decision about such treatment.

The certificate of incapacity

2.10 Under subsection 47(1) of the Act (as amended), the general authority to treat is triggered when the person who is authorised to issue a certificate of incapacity is of the opinion that the adult is incapable in relation to a decision about the medical treatment in question.

2.11 Under subsection 47(5) (as amended), the certificate of incapacity has to be in a prescribed form and must specify the period during which the authority remains valid, being a period which the person who issues the certificate for the medical treatment of the adult considers appropriate to the condition or circumstances of the adult; but does not exceed one year; or if, in the opinion of the practitioner issuing the certificate any of the conditions or circumstances prescribed by the Adults with Incapacity (Conditions and Circumstances Applicable to Three Year Medical Treatment Certificates) (Scotland) Regulations 2007 applies as respects the adult, 3 years, from the date of the examination on which the certificate is based.

2.12 The maximum duration of 3 years is dependent on the nature of the illness from which the patient is suffering particularly where the level of incapacity may vary or recovery may be anticipated. A certificate of 3 years would only be appropriate where, in the view of the practitioner who issues the certificate, a patient was suffering from at least one of the following conditions:

• Severe or profound learning disability, or
• Severe dementia, or
• Severe neurological disorder,

which causes the adult to lack capacity in respect of decisions about medical treatment as defined in section 47 of the Act (as amended) and which is unlikely to improve and for which no curative treatment is available.

2.13 It is good clinical practice however to review the capacity of the patient on a regular basis and where a treatment plan exists could be reviewed annually. Where a practitioner would normally review and seek fresh agreement from a competent patient, that may well be the appropriate point at which to review and re-certify in relation to a patient, the same principle should apply.

2.14 To demonstrate that the practitioner has fulfilled the requirements of section 47(3) of the Act (as amended), it is good practice to record such instructions, approval or agreement in the patient's medical record.

2.15 Four matters must be considered before completing the certificate of incapacity. Firstly, the practitioner issuing the certificate must have in contemplation some treatment, whether acute or continuing. A medical practitioner primarily responsible for the medical treatment of the adult may issue a certificate in respect of any medical treatment, whereas any other healthcare professional authorised to issue a certificate may only do so for the kind of treatment for which they are responsible. Secondly, the practitioner must be satisfied that the adult is incapable in relation to a decision about the treatment in question. Thirdly, if the person issuing the certificate is aware of the existence of a proxy with welfare powers, that person should, where it is reasonable and practicable to do so, obtain the consent of that proxy. Fourthly, the proposal for treatment must be consistent with the general principles laid down in section 1 of the Act.

2.16 It would be unreasonable, impractical and unnecessary to issue a separate certificate of incapacity for every health care intervention in some people.

For example, an adult with dementia in a nursing home may have multiple physical and mental health care needs in addition to a requirement for fundamental procedures to ensure nutrition, hydration, elimination, etc. On the other hand, a single certificate of incapacity is entirely appropriate when an adult requires a single procedure e.g. an operation. The Act specifies, under section 47(2) (as amended), that "the person who by virtue of subsection (1) has issued a certificate for the purposes of that subsection shall have … authority to do what is reasonable in the circumstances, in relation to the medical treatment, to safeguard or promote the physical or mental health of the adult". This could cover not only the operation but also post-operative medical care and pain relief. It is therefore clear that the certificate of incapacity, as designed, will provide an effective and workable means for managing single healthcare interventions but requires careful completion for a person who needs multiple interventions. A possible way to complete the certificate would be by reference to a treatment plan.

Use of Treatment Plans

2.17 For adults requiring multiple or complex healthcare interventions, it is recommended that a treatment plan similar to that suggested at Annex 5 may be drawn up. The treatment plan could outline the healthcare interventions that can be foreseen over the time specified in the certificate of incapacity and may be attached to the certificate of incapacity and held in the adult's case record. The practitioner could write in the line following "incapable within the meaning of the Adults with Incapacity (Scotland) Act (the 2000 Act) in relation to a decision about the following medical treatment" the phrase "See attached treatment plan". The treatment plan could contain a list of interventions along with a judgement from the practitioner regarding the adult's capacity to consent to these interventions. The exact content of the treatment plan will be negotiable. The practitioner should follow the general principles of the Act in formulating a plan and seeking the views of other relevant people. The practitioner must strike a balance between a plan that is too broad and therefore at odds with the principles of the Act, and one that is too narrow and might need to be changed on a frequent basis to the detriment of the adult's general health. A plan which is not broad enough is no less inconsistent with the Act's principles and purpose than one which is unnecessarily broad.

2.18 Treatment plans for the physical care of patients are an accepted part of nursing care, although the term 'care plan' is normally used. The completion of these plans is usually part of the general nursing requirement for the patient.

2.19 Examples of treatment plans are shown in Annex 5. It would be appropriate and in keeping with the Act to append any documentation used to outline the management of the adult's healthcare. This could include a chronic disease management plan or a standard review schedule for people in continuing hospital care. The suggested plan in Annex 5 is only a suggestion for an outline of a plan where no other format exists.

2.20 There are certain healthcare procedures to which all adults are entitled. These need not be listed individually on the form but might be included under a general heading of "Fundamental Healthcare Procedures".

This will include nutrition, hydration, hygiene, skin care and integrity, elimination or relief of pain and discomfort, mobility, communication, eyesight, hearing, and oral hygiene. These treatments may require some examination of the adult. Treatment plans might also appropriately include immunisation against influenza, in accordance with the guidance issued annually by the Chief Medical Officer.

2.21 The treatment plan could include a list of conditions for which treatment is required or foreseen in order to safeguard or promote the physical or mental health of the adult. For example, a treatment plan for an adult in a nursing home suffering from cerebrovascular dementia may need interventions in the areas of coronary heart disease, hypertension, stroke, depression, and sleep. The interventions would be listed on the treatment plan along with a judgement, in the right hand column, as to whether the adult can or cannot consent to the intervention.

2.22 No treatment plan of this sort can authorise interventions that would normally require the signed consent of the adult. A separate certificate of incapacity will be required for each intervention of this type. For example, if the adult in paragraph 2.21 needs heart surgery, this will not be included in the authority to treat under "coronary heart disease" and will require a separate certificate and separate consultation. Note also that, no treatment specified in regulations as needing special safeguards can be included in the treatment plan. (See paragraphs 2.62 to 2.63).

2.23 During the period specified by the certificate of incapacity, other conditions may come to light requiring healthcare interventions. Where this is a single, time-limited intervention, it may be appropriate to write a separate certificate of incapacity to cover this. However, if a condition requiring continuing intervention occurs, it may be necessary to rewrite a treatment plan, if used. A new certificate will need to be issued where any new plan goes beyond the scope of the existing certificate.

2.24 The treatment plan should include names and designations of people consulted. These should include a relative of the patient and must include the patient's welfare attorney or guardian or person authorised under an intervention order if such a person exists and where such a person has authority to consent to treatment on behalf of the adult. Where the adult is in institutional care, consultation with a senior member of care staff should be recorded.

2.25 Where the adult suffers from a disorder that is likely to cause continued incapacity to consent to medical treatment, the practitioner should routinely review treatment no less often than annually. Such a review should consider the present and likely future healthcare needs of the adult. Any other healthcare professionals providing care and treatment should be involved. As the review must follow the principles of the Act, it would be essential to consider the adult's views on treatment. Any welfare proxy where known, or the adult's nearest relative should also be given the opportunity to input to the review.

Seek consent of a proxy with welfare powers, where reasonable and practicable

2.26 The Act requires that even where a proxy has been appointed, a certificate under section 47(1) of the Act (as amended) must also be completed. When considering the issue of a certificate, the practitioner should ascertain whether it would be reasonable and practicable to seek the consent of a proxy with welfare powers. A proxy may be a guardian, a welfare attorney, or a person authorised under an intervention order. (See also paragraphs 2.72 to 2.78 for more detailed guidance on this matter.) It will be desirable for any proxy to make himself or herself known as soon as it appears that capacity is failing or has been lost. If the existence of a proxy with powers to consent to treatment on behalf of the adult is suspected but not known, it would be good practice for the practitioner to check with the adult's close relatives. Contact can also be made, where practicable, with the Public Guardian who will be able to check his registers and provide the name and contact details of any proxy with welfare powers appointed in terms of the Act. The local authority social work department may also have this information.

Apply the general principles to the treatment in contemplation before the certificate is issued

2.27 In deciding to certify the adult's incapacity, the practitioner must apply the general principles to the situation. The practitioner must be satisfied that the treatment would:

2.27.1 Be likely to benefit the adult, and that the potential benefit cannot reasonably be achieved without treatment; and

2.27.2 Be the least restrictive option in relation to the freedom of the adult, consistent with the purpose of the treatment. This should include, among other things, considering the duration of the certificate.

The maximum duration is three years, but it will often be appropriate to set down a shorter period. The duration should be related to the expected duration of the incapacity and of the treatment in prospect. Treatment without legal authority is not an option.

Take account of the wishes of the adult

2.28 The person who issues the certificate must also take account of the present and past wishes and feelings of the adult in so far they can be ascertained by any means of communication. This is an unqualified obligation. Guidance on communicating with the adult is given in this Code at paragraphs 1.8 to 1.25 under the heading of Assessment of incapacity. The best person to give an account of his or her wishes or feelings is the adult. However if verbal communication is impossible, other methods of communication should be used. If the patient's ability to comprehend information and respond to it appropriately is found to be very limited, other sources of information will have to be used.

Non-verbal communication may be taken into account, for example if the patient shows unusual distress at the mention of a particular kind of treatment or the sight of particular apparatus or instruments, even after attempts to reassure have been made. Practitioners are also able to seek assistance from the relevant speech and language therapy service for advice and support in assessing and responding to an individual's receptive and expressive communication capacity.

2.29 Medical records may record the past wishes of the adult from earlier contacts with the medical profession. It will be essential to try to ascertain the adult's past wishes and feelings from those who know him or her. While these reports should be taken into account, the practitioner should guard against taking at face value everything that relatives or carers say about the adult's past wishes and feelings, in case these have been misunderstood or are being misrepresented. If time allows and it is feasible to do so, it may be appropriate to contact the patient's solicitor, member of the clergy or other adviser to ascertain whether the patient at any time in the past expressed wishes or feelings on the subject of his or her medical treatment.

2.30 A competently made advance statement made orally or in writing to a practitioner, solicitor or other professional person would be a strong indication of a patient's past wishes about medical treatment but should not be viewed in isolation from the surrounding circumstances. The status of an advance statement should be judged in the light of the age of the statement, its relevance to the patient's current healthcare needs, medical progress since the time it was made which might affect the patient's attitude, and the patient's current wishes and feelings. An advance statement cannot bind a practitioner to do anything illegal or unethical. An advance statement which specifically refuses particular treatments or categories of treatment is called an 'advance directive'. Such documents are potentially binding. When the practitioner contemplates overriding such a directive, appropriate legal and ethical guidance should be sought.

2.31 The person who issues the certificate will also need to take account of the views of the nearest relative or anyone nominated by the sheriff and primary carer, in so far as it is reasonable and practicable to do so, and of anyone else with an interest in the welfare of the adult. However, this does not require the practitioner to go to undue lengths to seek out such people. It would be good practice to make enquiries of the adult's visitors, social work officer or other personnel currently involved with the adult and make such contacts with relatives as are reasonable and practicable in the circumstances, distinguishing between the personal views of such people, and light they are able to shed on the adult's own views.

2.32 A welfare attorney, and a welfare guardian, have responsibility for encouraging the adult to exercise residual capacity. This does not mean that a patient who is very unwell must be encouraged to decide things for him or herself at all costs, but it does mean that if a practitioner consults an existing proxy about medical treatment, that proxy has a duty to encourage the adult to participate in the medical decision. Practitioners exercising a general authority to treat under section 47(2) of the Act (as amended) do not have this obligation but should try to do so as a matter of good practice. They should be alert to the legal obligation on a proxy who is involved in a medical decision to do so, and it will be good practice for the practitioner to give appropriate co-operation.

2.33 Where the present wishes and feelings of the adult, so far as they can be ascertained, appear to contradict clearly expressed past wishes and feelings then the most recently expressed view/wish, made while the adult had capacity will prevail.

Meaning of "treatment"

2.34 Under subsection 47(4) of the Act, "medical treatment" includes any procedure or treatment designed to safeguard or promote physical or mental health. Under subsection 47(2) of the Act (as amended), subject to certain exceptions discussed below, the person who by virtue of subsection (1) has issued a certificate for the purposes of that subsection shall have, during the period specified in the certificate, authority to do what is reasonable in the circumstances, in relation to the medical treatment, to safeguard or promote the physical or mental health of the adult. A single certificate may cover multiple treatments (see paragraphs 2.17 to 2.25), which may be facilitated by the use of treatment plans.

2.35 Treatment should depend on clinical need. There is nothing in the Act that would justify discrimination of any form between a patient with and a patient without capacity. The Act is designed to ensure that as far as possible adults with any incapacity have equity of treatment and choice with adults with capacity. The mechanism under section 47 of the Act (as amended) allows for the person who issues the certificate to proceed without the consent of the patient or a proxy where this consent is not available. The certificate authorises the treatment to proceed in the absence of the consent that a capable patient would have given.

2.36 Capacity should be assessed in relation to a decision about the medical treatment in question. In other words, an adult assessed as incapable in relation to one treatment should not necessarily be assumed to be incapable in relation to others. This consideration may, for example, be relevant in relation to interventions such as oral hygiene, taking of routine blood tests or immunisation. What is appropriate in a particular situation is a matter basically for clinical judgement, against the background of the principles and requirements of the Act. Judgement on an individual's incapacity to consent to any particular treatment should be based on an informed assessment of that incapacity.

2.37 Generally, treatment will involve some positive action. Simple failure to do anything for a patient would not be treatment. However a decision not to do something must accord with section 1 principles. It is difficult to conceive of circumstances in which a practitioner would take no steps at all in relation to a patient.

2.38 It would therefore be good practice to make an assessment and complete a certificate of incapacity - accompanied as appropriate by a treatment plan - where the conditions in section 47(1) of the Act (as amended) apply, whatever the treatment contemplated.

2.39 Treatment includes any procedure designed to promote or safeguard physical or mental health. Where the patient is unable to consent and there is no proxy with the necessary authority to do so, healthcare professionals will be unable to administer the treatment without instructions from, or the approval or agreement of a practitioner who has issued a certificate of incapacity. Good liaison will be needed between the practitioner and others providing healthcare at local level to ensure that such certificates are requested and issued at the appropriate times. Patients themselves and their carers should be made aware of the need for such a certificate by the provision of appropriate information by NHS Boards through all appropriate outlets.

Emergencies

2.40 The Act specifically preserves existing grounds on which treatment may be given. In such circumstances the provisions of the Act are an addition to, rather than a substitute for other grounds on which medical intervention can be authorised. This is particularly so in the case of emergencies. However, the provisions of the Act were introduced with a view to avoiding the uncertainties which existed under the law as to the precise circumstances in which treatment could be given. It could therefore offer added confidence to the practitioner and would also be good practice to make use, so far as reasonable and practicable, of the procedures under Part 5 if this is without risk to the patient. However, it would be contrary to good practice to risk prejudice to a patient's health through any delay in providing necessary treatment, in order to give effect to the procedures under Part 5 of the Act.

2.41 The division between cases where treatment is necessary for the preservation of life or to prevent serious deterioration, urgent cases, a necessity to treat and routine matters is not always clear-cut. What underlies the concepts of emergency and necessity is the issue of immediacy. The definition of emergency will vary slightly from specialty to specialty. There will of course be clinical situations where urgent treatment is required to save life - for example in maternity units or Accident & Emergency Departments, or when the patient is found unconscious through illness or injury. In such circumstances, a decision must often be taken and acted upon within seconds or minutes, if a fatality or severe damage is to be avoided. In other specialties, however, situations can take much longer to develop. An adult could require lifesaving surgery but there may be a period while they are being rehydrated and given antibiotics before they have an anaesthetic and operation. In this time, the practitioner responsible for the treatment could have time to consult and complete the certificate.

2.42 In all normal circumstances, the procedures set out in Part 5 of the Act should be followed. The basic judgement as to whether or not there is time to complete the appropriate certificate and undertake the processes associated with its completion is essentially a medical judgement in the first instance. Ultimately, however it will be for the courts to decide whether a practitioner has acted improperly in failing to secure the authority provided by a certificate under section 47 (as amended) of the Act. It is recommended that the authority be used in every case where it is reasonable and practicable to do so.

Change of circumstances

2.43 Subsection 47(6) of the Act (as amended) provides that if, after issuing a certificate, the person who issued it is of the opinion that the condition or circumstances of the adult have changed, he may

a. Revoke the certificate.

b. Issue a new certificate specifying such period not exceeding one year; or if, in the opinion of that person any of the conditions or circumstances prescribed by the Scottish Ministers apply as respects the adult, 3 years, from the date of revocation of the old certificate as he considers appropriate to the new condition or circumstances of the adult.

2.44 This could apply if the adult's incapacity changes, for example a person with learning difficulties develops dementia, or if the adult's medical condition changes. A change of circumstances could include a significant difference between the type or duration of treatment contemplated when a certificate was first signed, and the treatment that subsequently turns out to be clinically indicated. If this happens, it would be good practice to revoke the first certificate and make out a new certificate covering the new treatment. Good practice would indicate that if a capable patient would have been asked for consent to a change in treatment owing to a new diagnosis or developing knowledge of his or her medical condition, then an incapable patient ought to be subject to a new certificate. The issue of any new certificate would require a fresh assessment of the patient, just as revocation would. There will, however, be cases where a relatively general wording in the certificate will be the most appropriate action. This will obviate developing a multiplicity of certificates where the patient's condition or diagnosis develops rapidly or is complex. It will of course be essential to keep the adult's condition and capacity to consent under regular review.

Change of practice

2.45 Where the person who issues the certificate of incapacity ceases to be primarily responsible for the adult's treatment (for instance, if the adult moves elsewhere, or the practitioner retires or moves to another post) and another practitioner takes over responsibility, that new practitioner should review the adult's circumstances. If the new practitioner believes that the adult's circumstances have not changed since the issue of the original certificate, it may continue to apply until its expiry date. If, however, the new practitioner believes that the adult's circumstances have changed, the new practitioner can revoke the original certificate and, if necessary, issue a new one.

Matters not covered by the general authority to treat

2.46 There are several exceptions to the general authority to treat. These are discussed below.

Treatments falling under the Mental Health (Care and Treatment)(Scotland) Act 2003

2.47 It is not always necessary to detain an adult formally under the 2003 Act because they are unable to consent to treatment for mental disorder. If an adult with incapacity who is not formally detained under the 2003 Act requires treatment for a mental disorder, this may be given under the 2000 Act. If the adult resists that treatment, this should be taken as an indication of the adult's wishes, which must be taken into account in terms of section 1 of the 2000 Act. Consideration should be given to whether it would be appropriate that they should be formally detained under the 2003 Act in order that they might benefit from the added protections which that Act offers. Advice may be sought from a psychiatrist or mental health officer. In difficult cases, the Mental Welfare Commission may be able to advise.

2.48 The authority to treat under section 47(2) is subject to sections 234, 237, 240, 242 and 243 of the Mental Health (Care and Treatment)(Scotland) Act 2003 ("the 2003 Act"). These sections may be found in part 16 of the 2003 Act. Part 16 applies to all patients where the giving of medical treatment to them has been authorised by virtue of the 2003 Act, or similar provisions in the Criminal Procedure (Scotland) Act 1995. Safeguards for neurosurgery for mental disorder ( NMD) and the treatment known as "deep brain stimulation" ( DBS) extend to any person with a mental disorder for whom these treatments are considered, that is even where the patient is an informal patient and not subject to compulsory measures under the 2003 Act. This means that these treatments cannot be given to patients under Part 5 of the Act unless the conditions in section 236 of the 2003 Act are fulfilled. The opinion of the patient's responsible medical officer (or where the patient does not have a responsible medical officer, the medical practitioner primarily responsible for treating the patient), a designated medical practitioner and 2 lay persons appointed by the Mental Welfare Commission is required.

Where the patient is incapable of consenting, the responsible medical officer must also apply to the Court of Session and the Court must make an order authorising the treatment specified. It would not be expected that a patient under 20 years of age would be considered for such treatments. ( DBS is a specified treatment under the Mental Health (Medical treatments subject to safeguards)(section 234) Regulations 2005 (SSI2005/291))

2.49 Part 16 of the 2003 Act covers treatment for mental disorder generally. It also provides additional safeguards for the following treatments:

• ECT, transcranial magnetic stimulation ( TMS) and vagus nerve stimulation ( VNS) ( TMS and VNS are specified treatments under The Mental Health (Medical treatments subject to safeguards)(section 237) (Scotland) Regulations 2005 (SSI2005/292))
• Safeguards apply after 2 months for drug treatments (where the adult's consent OR a second opinion by a doctor appointed by the Mental Welfare Commission is required)
• Safeguards apply immediately for the following treatments (where the adult's consent OR a second opinion by a doctor appointed by the Mental Welfare Commission is required)
• any medication (other than surgical implantation of hormones) given for the purpose of reducing sex drive;
• provision of nutrition to the patient by artificial means;
• such other types of treatment as may be specified in regulations under section 240(3)(d)

2.50 Where an adult is formally subject to compulsory care and treatment including treatment under part 16 of the 2003 Act any treatment for mental disorder must be authorised under that Act rather than by the 2000 Act. Treatment which is authorised to be given without consent under Part 16 of the 2003 Act may be given where the patient is assessed as being unable to consent due to incapacity. The treatment provisions in the 2000 Act cannot override the need for a patient's consent and/or a second opinion under sections 235, 236, 238, 239, 240, 241 and 242 of the 2003 Act.

2.51 Part 16 of the 2003 Act does not apply to treatments for physical conditions unrelated to the mental disorder. Therefore, if a patient is subject to the provisions of the 2003 Act and requires treatment for a physical condition they should be assessed for their capacity to consent to such treatment and, if appropriate, treatment considered under the provisions of the 2000 Act.

2.52 There are some situations where the 2003 Act authorises detention, but does not authorise treatment for mental disorder. However, these situations essentially relate to emergency detention for short periods. In such cases, treatment for mental disorder may be given under Part 5 of the 2000 Act where the adult is assessed as being unable through incapacity to consent to such treatment. If treatment is required during these periods, it is likely to be on an emergency basis, and may require to be carried out using the common law (see paragraph 2.3). The relevant provisions are:

• a nurse's power to detain pending a medical examination under section 299
• the power to hold a person under the provisions relating to removal to a place of safety under sections 293 and 297
• a warrant granted under a local authority's duty to inquire under section 35
• an order under section 60C of the Criminal Procedure (Scotland) Act 1995, where an acquitted person may be detained for medical examination

2.53 Any patient detained by virtue of the above provisions must therefore provide consent to any treatment for mental disorder. The exception is that a patient detained under an emergency detention certificate issued under section 36 of the 2003 Act may be given urgent treatment administered under the provisions of section 243, without their consent.

2.54 A certificate authorising such treatment under the 2000 Act should only be made out for the shortest possible period. It would not be good practice to continue to treat a patient detained under the above provisions for longer than absolutely necessary. For someone who is no longer formally detained, but who is not objecting to remaining in hospital, or who can be treated in the community, Part 5 of the 2000 Act can continue to be used.

2.55 The Mental Health (Care and Treatment) (Scotland) Act 2003, came into operation on 5 October 2005.

The use of force or detention

2.56 Subsection 47(7) of the Act prohibits the use of force or detention, unless it is immediately necessary and only for so long as is necessary in the circumstances. The interpretation of this will depend on the particular circumstances of each case, but the principles set out in section 1 of the Act must be applied. So, for example, the degree of force applied must be the minimum necessary. Where an adult shows continued resistance to treatment for mental disorder consideration should be given to making use of the options available under mental health legislation.

2.57 It may be helpful to refer to the Mental Welfare Commission Scotland's guidance "Rights, Risks and Limits to Freedom", which is available on the MWC's website at http://www.mwcscot.org.uk/web/FILES/Publications/Rights_Risks_web.pdf

Useful guidance may also be found in the Scottish Commission for the Regulation of Care's National Care Standards, which can be obtained from The Stationery Office.

2.58 Placing the adult in hospital for treatment for mental disorder against his or her will can only be carried out by making an application formally to detain the adult in hospital under the 2003 Act. However, where it is not against the patient's will, treatment by way of admission to hospital may be permitted under the 2000 Act.

2.59 Where an adult lacks capacity and resists treatment for physical disorder, consideration should be given to an application for Welfare Guardianship.

This would allow the Sheriff to make an order that the adult complies with the decision of the guardian. Alternatively, in cases where the adult may recover capacity, it may be more appropriate to seek an intervention order to authorise the required treatment.

Covert medication

2.60 The use of covert medication is permissible in certain, limited circumstances e.g. to safeguard the health of an adult who is unable to consent to the treatment in question, where other alternatives have been explored and none are practicable. Healthcare staff should not give medication except in accordance with the law, and even where the law allows its use it should not be given in a disguised form unless the adult has refused and their health is at risk because of this. Staff are obliged to record this in the patient's records. Practitioners who may be requested to administer covert medication should make themselves fully aware of the guidance of their own professional bodies. It may also be helpful to refer to the Mental Welfare Commission Scotland's guidance documents Consent to Treatment and Covert Medication - a legal and practical guide.

Treatments regulated under section 48(2) of the Act

2.61 Under the provisions of section 48(2) of the 2000 Act certain irreversible or hazardous treatments may not be given with the sole authority of a certificate of incapacity under section 47(2) (as amended), though it is still necessary for a certificate to be issued. The administration of these treatments is subject to regulations made under section 48 of the Act, The Adults with Incapacity (Specified Medical Treatments) (Scotland) Regulations 2002, available at: http://www.opsi.gov.uk/legislation/scotland/ssi2002/20020275.htm

Such treatments or types of treatment may not be given to any patient who is unable to consent to them except in the specific circumstances and with the specific approvals detailed in the regulations. The treatments specified by the regulations are:

• Sterilisation where there is no serious malfunction or disease of the reproductive organs
• Surgical implantation of hormones for the purpose of reducing sex drive
• Drug treatment for the purpose of reducing sex drive, other than surgical implantation of hormones
• Electro-convulsive therapy ( ECT) for mental disorder
• Abortion
• Any medical treatment which is considered likely by the medical practitioner primarily responsible for that treatment to lead to sterilisation as an unavoidable result.

2.62 A supplementary Code of Practice ( NHSHDL (2002) 50) was issued on 17 June 2002. The supplementary Code of Practice contains details of the Regulations related to excepted treatments which came into force with Part 5 of the Act on 1 July 2002. This supplementary Code remains valid.

Welfare guardians and attorneys

2.63 Welfare guardians and attorneys may not consent on behalf of the patient to any treatment which is regulated under section 48(2) of the Act by the Adults with Incapacity (Specified Medical Treatments) (Scotland) Regulations 2002. However, the views of the welfare guardian or attorney should be taken into account when considering treatment falling within the scope of the regulations, and any exceptions to their authority.

Where there is a criminal law prohibition

2.64 The Act introduced a new criminal offence. Under section 83 it shall be an offence for any person exercising powers under the Act relating to the personal welfare of an adult to ill-treat or wilfully neglect that adult. The penalties are on summary conviction up to 6 months imprisonment or a fine of up to £5000 or both and on indictment up to 2 years imprisonment or a fine or both. For example, a practitioner who issued a certificate of incapacity under the Act and then ill-treated or wilfully neglected the adult would be liable to prosecution for this offence, as would anyone acting on his or her instructions or with his or her approval or agreement. Similarly a guardian or a proxy with power to make decisions on medical treatment who ill-treated or neglected the adult would be liable to prosecution.

2.65 The Act does not affect the existing criminal law whereby anybody who acted in such a way towards another person as to unlawfully cause or hasten his or her death would be guilty of a criminal offence. Neither does the Act change the law in relation to euthanasia, which remains a criminal act under Scots Law.

2.66 Any health or social care professional, like any individual, who acts by any means - whether by withholding treatment or by denying basic care, such as food and drink - with euthanasia as the objective, is open to prosecution under criminal law. Nothing in the Act authorises any action that is intended to bring an end to the adult's life. Where practitioners consider withholding any care or treatment that might prolong life, or in the interests of patient safety, they must do so in accordance with the guidance produced by the General Medical Council Withholding and Withdrawing - Guidance for Doctors. This can be found at:http://www.gmc-uk.org/guidance/ethical_guidance/witholding_lifeprolonging_guidance.asp

2.67 The criminal law and the general principles of the Act are consistent on this point. Part 5 only authorises the issuing of a certificate, and the provision of medical treatment under it, if it will benefit the adult and there is no reasonable way of achieving the benefit without the intervention.

Nothing in the Act authorises acts or omissions which harm, or are intended to bring about or hasten the death of, a patient.

2.68 All interventions under the Act (including some omissions to act) must comply with the general principles that all interventions must benefit the adult, and that any intervention must be the least restrictive option in relation to the freedom of the adult. Clearly, an intervention under Part 5 of the Act which adversely affects the well-being of an adult or causes harm or even death to that adult cannot be described as bringing a benefit to that adult. Section 47 of the Act (as amended) only allows intervention to "safeguard or promote the physical or mental health of the adult". This does not impose a duty to provide futile treatment or treatment where the burden to the patient outweighs the clinical benefit. An intervention which would not produce any benefit would contravene the first principle.

Where there is or could be a conflicting court decision

2.69 Section 47(7)(b) provides that the general authority does not cover action which would be inconsistent with any decision by a competent court.

2.70 Section 47(9) provides that where any question as to the authority of any person to provide medical treatment under the general authority is subject to an application to the court (other than in the case of a specified treatment) and that application has not been determined, the treatment shall not be given. However it is still possible to give treatment where it is necessary to preserve life or prevent serious deterioration in the adult's medical condition. This would include circumstances where a deterioration would not be immediate but the need for treatment to prevent such deterioration is immediate. It is less clear whether action taken to prevent circumstances arising in which patients' prospects of a full or more complete recovery are inhibited would be covered by the concept of "prevention of serious deterioration" in all cases. Where practicable the view of the court in question should be taken. It is thought, however, that conventional treatment designed to maintain the patient's prospects of full recovery may, in many circumstances, be considered to be for the prevention of serious deterioration in the adult's medical condition.

2.71 Section 47(10) and section 49(3) provide that nothing shall authorise the provision of any medical treatment where an interdict has been granted and continues to have effect prohibiting the provision of such medical treatment.

Where there exists or there is an application to appoint a proxy with powers to consent

2.72 Section 49 of the Act (as amended) prevents treatment, except for the preservation of life or the prevention of serious deterioration, if there is an application before the sheriff for an intervention order or guardianship order with power in relation to the treatment and that application has not yet been determined. Practitioners should have early discussions with the applicants for such powers where possible, with regard to any potential treatments which would or would not require consultation with them.

2.73 The prohibition only applies where this is within the knowledge of the practitioner. There is no need to make disproportionate effort to find out whether there is such an application but it would be good practice to check with the adult's relatives and social work officer, if they have any, whether they are aware of such an application. The code of practice for persons authorised under intervention orders and guardians makes clear that applicants for relevant powers should make themselves known to the adult's practitioner. This is also required by the principles, because it would be an unnecessary intervention to follow section 47 procedure if a proxy with relevant powers is about to be appointed.

2.74 Subsection 50(2) of the Act disapplies the general authority where there is a proxy (guardian, welfare attorney or person authorised under an intervention order) with powers in relation to the medical treatment and the person who issued the certificate for the purposes of section 47 (1) is aware of the appointment and it would be reasonable and practicable to obtain the proxy's consent but he or she has failed to do so.

2.75 Persons authorised under intervention orders and guardians with relevant powers should make themselves known to the practitioner who is treating the adult and this information should be clearly displayed in a prominent place in the adult's medical notes. However, it would be good practice to check with close relatives and/or the adult's social work officer (if any) whether such an appointment is known to them. Details of proxies should be systematically recorded in relevant medical records. If the practitioner considers that some further steps should be taken to ascertain whether there is such a proxy, this can be done most readily by contacting the Public Guardian, for those appointed after the Act came into effect.

2.76 If the existence of a proxy is identified, the practitioner should consider whether it would be reasonable and practicable to postpone the treatment until it has been possible to obtain the proxy's consent. It would be reasonable to do so if the proxy is visiting the adult in hospital regularly, or regularly accompanies the adult to outpatient, dental, optometrist or GP/practice nurse appointments. If the proxy is not someone with whom the practitioner otherwise has contact, he or she should ascertain whether the proxy can be readily contacted to discuss the matter face to face. If the existence of an application for an intervention order or a guardianship order with power in relation to the medical treatment is identified, the practitioner must not give any medical treatment unless it is authorised by any other enactment or rule of law for the preservation of the life of the adult or the prevention of a serious deterioration in his or her medical condition.

2.77 Attorneys may be individuals or professionals such as solicitors. Welfare guardians and persons authorised under an intervention order may be individuals, professionals or social work officers exercising guardianship powers delegated by the chief social work officer. Proxies who are acting in a professional capacity should be prepared to make time to discuss the adult's treatment even if they do not have day to day contact with the adult. For private individuals, much will depend on their accessibility. It is reasonable to expect that proxies with power in relation to medical treatment will make themselves available to consult with practitioners.

Although there will be times that the proxy is unavailable, simple failure to respond should be reported to the appropriate authorities. Everything will depend on the particular circumstances of the case, but it is expected that proxies will have a continuing interest in and knowledge of the adult, and should be contacted.

2.78 It may emerge in the course of seeking a proxy's consent that the adult is not receiving the attention he or she should from that proxy in terms of the proxy's duties. In such circumstances it would be good practice for the practitioner to take some action to draw this to the attention of the authorities. Local authorities have a statutory duty to investigate complaints received about welfare proxies, and the practitioner should contact the local authority for the area in which the adult normal resides if he or she considers that a proxy is not acting properly. If in doubt, the practitioner may also be able to receive guidance from the Public Guardian, the Mental Welfare Commission or a range of voluntary bodies (see contacts list in Annex 4).